State ex rel. Ellis v. Creech, 43624

• Court: United States State Supreme Court of Missouri
• Writing for the Court: HYDE
• Citation: 364 Mo. 92,259 S.W.2d 372
• Parties: STATE ex rel. ELLIS et al. v. CREECH.
• Docket Number: No. 43624,43624
• Decision Date: 08 June 1953

Page 372

259 S.W.2d 372 364 Mo. 92 STATE ex rel. ELLIS et al.
v.
CREECH. No. 43624. Supreme Court of Missouri, en Banc. June 8, 1953.
Rehearing Denied July 13, 1953.

Page 373

Warren Turner, Springfield, Rendlen & Rendlen, Hannibal, for appellant.

[364 Mo. 93] Brevator J. Creech, Troy, for respondent.

[364 Mo. 94] HYDE, Judge.

Prohibition to prevent respondent Judge from enforcing a temporary injunction in the case of Raymond E. Ellis v. Ruth Ellis et al. pending in the Circuit Court of Lincoln County and directing him to strike this order from the records of the Court. The question for decision is whether respondent, after disqualifying in the case and being replaced by a transferred Judge, had jurisdiction to order a temporary in junction therein.

Relator Ruth Ellis was granted a decree of divorce from Raymond E. Ellis in 1951, in the Circuit Court of Lincoln County, after an agreement to settle property rights had previously been made by them. In this settlement it was agreed that Ruth Ellis would deed her interest in a 160 acre farm in Lincoln County to Raymond Ellis and that he would execute a trust deed on the farm securing annual payments to her of $3,000 for ten years; and make certain other cash payments in settlement of her property rights and his obligation of support. These deeds were made and relator F. D. Wilkins was named trustee in the trust deed. In September 1952, Raymond Ellis filed a suit in the Circuit Court of Lincoln County against relators and others to set aside the divorce decree, the property settlement and the trust deed on grounds of fraud and conspiracy. Respondent disqualified in this case and requested the Supreme Court to temporarily transfer a Circuit Judge to hear the case. This Court transferred Honorable Roy B. Meriwether, Judge of the 10th Judicial Circuit, for that purpose. We take notice from our records that Judge Meriwether has tried this case on the merits and dismissed plaintiff's cause; and that it is now pending here on appeal as No. 43683.

The $3,000 payment, due October 1, 1952, secured by the trust deed was not made and relators had the land advertised for sale on November 22, 1952. On November 19, 1952, Raymond Ellis filed a petition in his case, under the provisions of Section 526.040 (statutory references are to RSMo 1949, and V.A.M.S.), for a temporary injunction restraining the foreclosure. Respondent, who was then in Lincoln County (his residence), made an order on November 20, 1952, in [364 Mo. 95] chambers, that a temporary injunction be granted upon deposit of $3,000 with the Clerk in lieu of bond and this deposit was made. Relators contend that, after respondent disqualified in the case and another Judge was transferred to try the case, then respondent had no jurisdiction to make an order therein for a temporary injunction. We think this contention must be sustained.

In State v. Scott, 359 Mo. 631, 223 S.W.2d 453, 455, we held that a judge transferred by Supreme Court order, under Sec. 6, Art. V of the Constitution, V.A.M.S., to try a particular case, was 'clothed with authority to hear the case' although the regular judge of the circuit had entered an order

Page 374

disqualifying himself after previously calling in another judge, who did not try the case. More recently in Cantrell v. City of Caruthersville, Mo.Sup., 255 S.W.2d 785, 786, we held a judge, sitting at the request of the judge of another circuit under Sec. 15, Art. V, had jurisdiction of the case he was requested to try. We said: 'It makes no difference whether the request is to sit in one case or several cases or a whole term or a part of a term; or whether the regular judge of the circuit continues to...